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USERY v. MARQUETTE CEMENT MFG. CO.

No. 301, Docket 76-4083.

568 F.2d 902 (1977)

W. J. USERY, Jr., Secretary of Labor, Petitioner, v. MARQUETTE CEMENT MANUFACTURING COMPANY, Respondent, and Occupational Safety and Health Review Commission, Intervenor-Respondent.

United States Court of Appeals, Second Circuit.

Decided August 29, 1977.

Attorney(s) appearing for the Case

Nancy L. Southard, Atty., Dept. of Labor, Washington, D. C. (William J. Kilberg, Solicitor of Labor, Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Asst. Counsel for Appellate Litigation, Dept. of Labor, Washington, D. C., on the brief), for petitioner Secretary of Labor.

George W. Moehlenhof, Chicago, Ill. (McDermott, Will & Emery, Chicago, Ill., on the brief), for respondent Marquette Cement Manufacturing Co.

Rex E. Lee, Asst. Atty. Gen., and Allen H. Sachsel, Atty., Dept. of Justice, Washington, D. C., filed a brief for intervenor-respondent Occupational Safety and Health Review Commission.

Before MOORE, OAKES, and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

The Secretary of Labor (Secretary) petitions us to review a decision of the Occupational Safety and Health Review Commission (Commission) which vacated the Secretary's citation of Marquette Cement Manufacturing Company (Marquette) for violating § 5(a)(1) ("general duty clause") of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 654(a)(1) (1970).1

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